REPORT Nº 89/01
1. On November 8, 2000, the Inter-American Commission on Human Rights (the “Commission”) received a petition from Saul Lehrfreund of the London, United Kingdom law firm of Simons Muirhead & Burton (the “Petitioners”) against the Republic of Trinidad and Tobago (“Trinidad and Tobago” or “the State”). The petition was presented on behalf of Mr. Balkissoon Roodal, a death row inmate in the Republic of Trinidad and Tobago.
The petition alleged that the State tried and convicted Mr. Roodal
for the crime of murder and sentenced him to death by hanging on July 15,
1999 under Trinidad and Tobago’s Offences
Against the Person Act.
The petition also alleged that the State is responsible for violating Mr.
Roodal’s rights under Articles I, II, XVIII, XXV and XXVI of the
American Declaration on the Rights and Duties of Man (the “American
Declaration” or the “Declaration”) in connection with the criminal
proceedings against him based upon the following grounds:
violations of Articles I, II, XVIII and XXVI of the American
Declaration, relating to the mandatory nature of the death penalty that
was imposed upon Mr. Roodal;
violations of Articles XVIII and XXVI of the American Declaration,
because the prosecution failed to give full disclosure of the convictions
of the prosecution witnesses to the defense and therefore deprived Mr.
Roodal of a fair trial;
violations of Articles XVII and XXV of the American Declaration,
relating to the delay in trying Mr. Roodal;
violations of Article XXVI of the American Declaration, relating to
Mr. Roodal’s treatment and conditions while in detention;
violations of Articles XVII and XXVI of the American Declaration,
relating to the denial of access to court and to an effective remedy for
violations of Mr. Roodal’s human rights.
As of the date of this report, the Commission had not received a
response from the State to Mr. Roodal’s petition.
4. As set forth in this report, having examined the contentions of the parties on the question of admissibility, and without prejudging the merits of the matter, the Commission has decided to admit the claims in the present petition in respect of Articles 1, 2, 4, 5, 7, 8 and 25 of the American Convention on Human Rights (the “American Convention” or the “Convention”) and Articles I, II, XVII, XVIII, XXV and XXVI of the American Declaration and continue with the analysis of the merits of the case.
II. PROCEEDINGS BEFORE THE COMMISSION
Petitions and Observations
5. Following receipt of Mr. Roodal’s petition, on November 13, 2000 the Commission transmitted the pertinent parts of the petition to the State. The Commission requested the State’s observations on the petition within 90 days as established in the Commission’s prior Regulations.
6. By note dated November 16, 2000, which was received by the Commission on November 20, 2000, the State acknowledged receipt of the Commission’s communication dated November 13, 2000.
7. In a communication dated September 14, 2001, the Petitioners submitted to the Commission additional information pertaining to Mr. Roodal’s complaint, including an affidavit sworn by Mr. Roodal on July 26, 2001. By note dated September 18, 2001, the Commission transmitted the pertinent parts of the Petitioners’ September 14, 2001 submissions to the State, with a request for a response within 20 days.
8. As of the date of this report, the Commission has not received any information or observations from the State respecting Mr. Roodal’s complaint.
B. Precautionary Measures
Contemporaneously with the transmission of the pertinent parts of
Mr. Roodal’s petition to the State, the Commission requested the State
to take precautionary measures pursuant to Article 29 of its prior
Regulations to stay Mr. Roodal’s execution pending the Commission’s
investigation of the allegations in his petition.
This request was made on the basis that if the State was to execute
Mr. Roodal before the Commission had an opportunity to examine his case,
any eventual decision would be rendered moot in terms of available
remedies and Mr. Roodal would suffer irreparable harm.
The Commission did not receive a response from the State to its
request for precautionary measures.
POSITIONS OF THE PARTIES
Position of the Petitioners
1. Background to the Complaint
According to the record in this case, Balkissoon Roodal was
arrested and charged with the murder of Philbert Charles during the period
from August 19 to August 20, 1995. Mr. Roodal’s trial took place between July 2 and July 25,
1999. On July 15, 1999, Mr.
Roodal was convicted of murder and sentenced to death by hanging under the
Offenses Against the Person Act. He
subsequently appealed his conviction to the Court of Appeal of Trinidad
and Tobago, which dismissed his appeal on April 7, 2000.
Mr. Roodal then lodged a petition for Special Leave to Appeal as a
Poor Person to the Judicial Committee of the Privy Council, which
dismissed his petition on November 2, 2000.
The murder for which Mr. Roodal was convicted arose out of an
attempt by the deceased Philbert Charles and several accomplices to steal
marijuana that the prosecution alleged had been illegally cultivated by
Mr. Roodal at a camp in the Charuma Forest.
The prosecution’s case was based upon a shotgun recovered by the
police from Mr. Roodal’s home, as well as testimony given at trial by
two of Mr. Charles’ accomplices, Selwyn Simmonds and Andrew Kenhai, and
several investigating police officers.
In his defense, Mr. Roodal contended that he was the victim of a
mistaken identity and that the evidence given by Selwyn Simmonds and
Andrew Kenhai was not credible. Mr. Roodal relied in this regard on a statement given by
Andrew Kenhai in which he claimed not to have seen anyone in the area.
Mr. Roodal also relied on the possibility that he had been mistaken
for his brother. This
argument was based upon evidence from Selwyn Simmonds that he had visited
the camp before and that it was Mr. Roodal’s brother, and not Mr. Roodal,
who had planted the marijuana in the forest.
Petitioners’ Position on the Commission’s Competence
Petitioners indicate in their petition that although the Republic of
Trinidad and Tobago denounced the American Convention on Human Rights on
May 26, 1998 which came into effect one year later pursuant to Article 78
of the American Convention, Trinidad and Tobago remains responsible for
violations of rights under the American Declaration of the Rights and
Duties of Man.
14. In alleging that the Commission is competent to entertain these alleged violations of the Declaration, the Petitioners cite the Inter-American Court of Human Right’s Advisory Opinion OC-10/89 dated July 14, 1989, in which the Court held that the American Declaration is the text that defines the human rights referred to in the Charter of the Organization of American States and that, as a consequence, it constitutes a source of obligation for OAS member states.
Further, the Petitioners indicate that they have cited and relied
upon provisions of the American Convention on Human Rights in making their
arguments under the American Declaration, based upon their submission that
the Commission has taken the view that in interpreting the rights
protected by the American Declaration it will employ the “most
acceptable doctoring” which is that set forth in the more detailed
provisions of the American Convention on Human Rights.
In further support of this approach, the Petitioners cite Article
29(d) of the American Convention, which provides that “no provision of
this Convention shall be interpreted as…excluding or limiting the effect
of the American Declaration…may have.”
Petitioners’ Position on Admissibility
16. In relation to the admissibility of their complaint, the Petitioners claim that Mr. Roodal has exhausted all available domestic remedies as required under Article 31 of the Commission’s Rules of Procedure. They contend that Mr. Roodal unsuccessfully appealed his conviction to the Trinidad and Tobago Court of Appeal, and sought Special Leave to Appeal as a Poor Person to the Judicial Committee of the Privy Council, the highest appellate body in Trinidad and Tobago, which denied the petition on November 2, 2000.
17. Further, the
Petitioners indicate that Mr. Roodal has not pursued a Constitutional
Motion in the domestic courts of Trinidad and Tobago because of Mr.
Roodal’s lack of private means and the unavailability of legal aid for
18. In addition and in the alternative, the Petitioners claim that the Constitution of Trinidad and Tobago is drafted so as to immunize from attack existing laws that were lawful before Independence. According to the Petitioners, these provisions have the effect of freezing in time colonial legislation which, without exception, authorize the mandatory death penalty. It is therefore not possible to argue in any domestic court that the death penalty is unconstitutional because of its mandatory nature or because it is cruel, unless the way it is to be carried out would not have been lawful before Independence. As a consequence, the Petitioners claim that arguments about whether or not the mandatory death penalty is lawful can only be made before the Commission under the American Declaration.
19. Also according to the Petitioners, the subject matter of Mr. Roodal’s case has not been submitted for examination under any other procedure of international investigation or settlement.
20. With respect to the merits of their petition, the Petitioners present 5 main claims:
the State is responsible for violations of Articles I, II, XVIII and XXVI
of the American Declaration by sentencing Mr. Roodal to a mandatory death
penalty for the crime of murder. In
particular, the Petitioners argue that the mandatory death sentence
imposed by the penal law of Trinidad and Tobago on every person convicted
of the crime of murder violates the right to life under Article I of the
Declaration and involves the imposition of cruel, infamous or unusual
punishment. They further
contend that the absence of any hearing to reach an objective and
proportionate decision on whether the death penalty should be imposed on
the facts of his case violates his right to equality before the law and
deprives him of a fair trial on the question of whether he should be
The State is responsible for violations of Mr. Roodal’s right to have
the legality of his detention ascertained without delay by a court, as
well as his right to a fair and speedy trial under Articles XVIII and XXV
of the American Declaration based upon the period of delay between Mr.
Roodal’s arrest and trial. The
Petitioners contend that Mr. Roodal was arrested on August 20, 1995 and
was not brought before a magistrate until August 23, 1995.
They also claim that he was charged on an indictment alleging that
he murdered Philbert Charles during the period August 19 to August 20,
1995, that his trial took place nearly 4 years later, between July 2 and
5, 1999, and that this period was unreasonably protracted.
The State is responsible for violations of Articles XVIII and XXVI of the
American Declaration, because the prosecution failed to give full
disclosure of the convictions of the prosecution witnesses to the defense
and therefore deprived Mr. Roodal of adequate time and means to prepare
his defense and a fair trial. The
Petitioners claim in particular that, in the context of Mr. Roodal’s
petition before the Judicial Committee of the Privy Council, they obtained
a list of convictions of prosecution witnesses from the State’s
solicitor on June 2, 2000. This
list indicated that the defense knowledge of the previous convictions of
Selwyn Simmonds and Andrew Kenhai was incomplete and that both witnesses
lied about the extent of their previous convictions.
The Petitioners state, inter
alia, that a conviction of a prosecution witness may be relevant to
both credit and propensity and that in the present case the credibility of
the prosecution witnesses was disputed and the convictions were therefore
relevant to this issue.
The State is responsible for violations of Article XXVI of the Declaration
in relation to Mr. Roodal’s treatment and conditions in detention prior
to and following his conviction. In
their submissions, the Petitioners provide information as to the general
conditions of detention facilities in Trinidad and Tobago, as well as the
particular conditions of detention experienced by Mr. Roodal, and claim
that these conditions fail to satisfy minimum international standards for
the humane treatment of prisoners. The
Petitioners also allege that following his arrest Mr. Roodal was the
victim of violence by the police and was deprived of proper medical
treatment for his resulting injuries.
The State is responsible for violations of Articles XVII and XXVI of the
Declaration as a consequence of its failure to provide Mr. Roodal with
effective access to Constitutional Motions before the courts in Trinidad
and Tobago for the protection of his domestic and international human
rights. The Petitioners argue
that Article 14 of the Trinidad and Tobago Constitution provides
individuals with the legal right to bring a Constitutional Motion in the
They submit that this right is not effective, however, because the
proceedings are extremely expensive and beyond the victims’ means, and
because no legal aid is available for these motions.
Consequently, the Petitioners claim that the cost involved in
instituting proceedings before the High Court is beyond the means of the
vast majority of those charged in capital offenses and there is no other
available legal proceeding by which Mr. Roodal can enforce his rights.
Position of the State
As indicated above, the Commission transmitted the pertinent parts
of the Petitioners’ petition to the State on November 13, 2000 with a
request that the State provide information relevant to the Petitioners’
complaints within 90 days. Despite
this request, as of the date of this report the Commission had not
received any information or observations from the State concerning Mr.
Competence of the Commission
22. The Republic of
Trinidad and Tobago became a party to the American Convention on Human
Rights when it deposited its instrument of ratification of that treaty on
May 28, 1991.
Trinidad and Tobago
subsequently denounced the American Convention by notice given one year in
advance on May 26, 1998 in accordance with Article 78 of the American
Convention on Human Rights, which provides as follows:
The States Parties may denounce this Convention at the expiration
of a five-year period from the date of its entry into force and by means
of notice given one year in advance.
Notice of the denunciation shall be addressed to the Secretary
General of the Organization, who shall inform the other States Parties.
(2) Such a denunciation shall not have the effect of releasing the State
Party concerned from the obligations contained in this Convention with
respect to any act that may constitute a violation of those obligations
and that has been taken by that state prior to the effective date of
23. By the plain terms of Article 78(2), states parties to the American Convention have agreed that a denunciation taken by any of them will not release the denouncing state from its obligations under the Convention with respect to acts taken by that state prior to the effective date of the denunciation that may constitute a violation of those obligations. A state party’s obligations under the Convention encompass not only those provisions of the Convention relating to the substantive rights and freedoms guaranteed thereunder. They also encompass provisions relating to the supervisory mechanisms under the Convention, including those under Chapter VII of the Convention relating to the jurisdiction, functions and powers of the Inter-American Commission on Human Rights. Notwithstanding Trinidad and Tobago’s denunciation of the Convention, therefore, the Commission will retain jurisdiction over complaints of violations of the Convention by Trinidad and Tobago in respect of acts taken by that State prior to May 26, 1999. Consistent with established jurisprudence, this includes acts taken by the State prior to May 26, 1999, even if the effects of those acts continue or are not manifested until after that date.
24. In respect of
acts taken by the State wholly after May 26, 1999, the State remains bound
by the American Declaration of the Rights and Duties of Man and the
Commission’s authority to supervise the State’s compliance with that
instrument, having deposited its instrument of ratification of the OAS
Charter on March 17, 1967 and thereby becoming an OAS member state.
the present case,
certain of the events
complained of by Mr. Roodal may, on the information available, have
occurred wholly prior to May 26, 1999, while others may have occurred
prior to May 26, 1999 but continued or had their effects manifested after
that date. Still other acts may have been taken wholly after May 26, 1999.
These circumstances raise the possible application of either or
both the American Convention and the American Declaration to the claims
raised by Mr. Roodal in his petition.
The Commission notes in this regard that, while the Petitioners
have not specifically alleged violations of the American Convention in
their petition, the Commission has the authority and the duty to apply the
juridical provisions relevant to a proceeding even where the parties do
not expressly invoke them, by reason of the general principle of law iura
26. In light of the nature of the Petitioners’ allegations, the Commission considers that it is only through the analysis of the merits of the Petitioners’ claims that it may properly determine the nature and extent of any acts for which the State may be responsible and accordingly ascertain the applicability of the American Convention and/or the American Declaration to those acts. The Commission therefore finds that it is competent to consider Mr. Roodal’s complaints under both instruments, and will join to the merits of the case determination of the specific applicability of either or both the American Convention or the American Declaration to each of the claims raised in Mr. Roodal’s petition.
Article 46(1)(c) of the American Convention and Article 33(1) of
the Commission’s Rules of Procedure provide that the Commission shall
not consider a petition if its subject matter is pending settlement
pursuant to another procedure before an international governmental
organization of which the State concerned is a member, or if it
essentially duplicates a petition pending or already examined and settled
by the Commission or by another international governmental organization of
which the State concerned is a member.
28. The Petitioners in Mr. Roodal’s case have indicated that his complaints have not been submitted for examination by any other procedure of international investigation or settlement. The State has not contested the issue of duplication. The Commission therefore finds no bar to consideration of Mr. Roodal’s complaints under Article 46(1)(c) of the American Convention or Article 33(1) of the Commission’s Rules of Procedure.
Exhaustion of Domestic Remedies
Article 46(1)(a) of the Convention and Article 31(1) of the
Commission’s Rules of Procedure specify that, in order for a case to be
admitted, remedies of the domestic legal system must have been pursued and
exhausted in accordance with the generally accepted principles of
international law. The
jurisprudence of the inter-American system makes clear, however, that the
rule which requires the prior exhaustion of domestic remedies is designed
for the benefit of the State, because the rule seeks to excuse the State
from having to respond to charges before an international body for acts
imputed to it before it has had an opportunity to remedy them by internal
means. According to the Inter-American Court, the requirement is
thus considered a means of defense and, as such, waivable, even tacitly.
Further, a waiver, once effected, is irrevocable. In the face of such a waiver,
the Commission is not obliged to consider any potential bars to the
admissibility of a petitioner’s claims that might have properly been
raised by a state relating to the exhaustion of domestic remedies.
30. In the present case, the State has failed to provide any observations or information respecting the admissibility of Mr. Roodal’s claims. Nevertheless, based upon the extensive submissions provided by the Petitioners, it is clear to the Commission that Mr. Roodal has exhausted available and effective remedies before the courts in Trinidad and Tobago. The Petitioners have indicated in particular that Mr. Roodal unsuccessfully appealed his conviction to the Trinidad and Tobago Court of Appeal, and sought Special Leave to Appeal as a Poor Person to the Judicial Committee of the Privy Council, the highest appellate body in Trinidad and Tobago, which denied the petition on November 2, 2000. The State has not disputed these facts or otherwise demonstrated that remedies for the matters complained of in the Petitioners’ petition are available in fact or in law or have not been exhausted.
31. Based upon these circumstances, the Commission finds that Mr. Roodal exhausted available and effective remedies when the Judicial Committee of the Privy Council dismissed his petition for Special Leave to Appeal on November 2, 2000. Accordingly, the Commission finds that the Petitioners’ claims are not barred under Article 46(1)(a) of the Convention or Article 31(1) of its Rules of Procedure.
Timeliness of the Petition
32. In accordance with Article 46(1)(b) of the Convention and Article 32(1) of the Commission’s Rules of Procedure, the Commission shall consider those petitions that are lodged within a period of six months from the date on which the complaining party was notified of the final judgment at the domestic level. Mr. Roodal’s petition was lodged with the Commission on November 8, 2000 and therefore within six months from the date of the decision that exhausted domestic remedies, namely the November 2, 2000 decision of the Judicial Committee of the Privy Council denying Mr. Roodal Special Leave to Appeal. The State has not disputed these facts or otherwise demonstrated that the Petitioners have failed to comply with the 6-month requirement. Accordingly, the Commission finds no bar to the admissibility of the petition under Article 46(1)(b) of the Convention and Article 32 of the Commission’s Rules.
33. Article 47(b)
of the Convention and Article 34(a) of the Commission’s Rules of
Procedure require a petition to be declared inadmissible if it does not
state facts that tend to establish a violation of the rights guaranteed by
the Convention or other applicable instruments.
Article 47(d) of the Convention and Article 34(b) of the
Commission’s Rules of Procedure deem inadmissible any communication
where the statements of the petitioner or the State indicate that the
petition is manifestly groundless or out of order.
34. The Petitioners in the present case have alleged that the State has violated Mr. Roodal’s rights under Articles I, II, XVIII, XXV and XXVI of the American Declaration. As the Commission has noted, the Petitioners’ allegations may also disclose violations of comparable provisions of the American Convention on Human Rights to the extent that the conduct of the State is alleged to have occurred in whole or in part prior to May 26, 1999. Based upon the information provided by the Petitioners, and without prejudging the merits of the matter, the Commission finds that the Petitioners’ petition contains factual allegations that, if proved, tend to establish violations of the rights guaranteed by either or both the American Convention or the American Declaration, and that the statements of the Petitioners are not on the information provided manifestly groundless or out of order. Consequently the claims in the petition are not barred under Article 47(b) and 47(c) of the Convention and Article 34 (a) and (b) of the Commission’s Rules of Procedure.
The Commission concludes that it has the competence to examine this
case, and that the petition is admissible in accordance with Articles 46
and 47 of the Convention and Articles 31 to 34 of the Commission’s Rules
36. On the basis of the findings of fact and law set forth above, in light of the particular temporal context of the events alleged in the petition as described above, and without prejudging the merits of the matter,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
1. To declare admissible the Petitioners’ claims in respect of Articles 1, 2, 4, 5, 7, 8 and 25 of the American Convention and Articles I, II, XVII, XVIII, XXV and XXVI of the American Declaration.
2. To give notice of this decision to the State and to the
3. To continue with the analysis of the merits of the case.
4. To publish this Report and include it in the Annual Report to the OAS General Assembly.
and signed in the city of Washington, D.C., the 10th day of the
month of October, 2001. (Signed):
Claudio Grossman, President; Juan Méndez, First
Vice-President; Marta Altolaguirre, Second Vice-President; Hélio
Bicudo, Robert K. Goldman, Peter Laurie, and Julio Prado
the Person Act, (3 April 1925), Laws of Trinidad and Tobago, Ch.
11:08. Section 4 of the Act prescribes the death penalty as the
mandatory punishment for the crime of murder, providing that "[e]very
person convicted of murder shall suffer death."
During its 109th special session in December 2000,
the Commission approved the Rules of Procedure of the Inter-American
Commission on Human Rights, which replaced the Commission’s prior
Regulations of April 8, 1980. Pursuant to Article 78 of the
Commission’s Rules of Procedure, the Rules entered into force on May
In support of their position that Constitutional Motions need not be
pursued in Mr. Roodal’s circumstances, the Petitioners cite the
decisions of the U.N. Human Rights Committee in Little v. Jamaica,
Communication Nº 283/1988, U.N. Doc. Nº CCPR/C/43/D/283/1988, Reid
v. Jamaica, Communication Nº 725/1987, U.N. Doc. Nº CCPR/PR/C/39/D/725/1987;
Collins v. Jamaica, Communication Nº 356/1989, U.N. Doc. Nº CCPR/C/47/D/356/1989,
Smith v. Jamaica, Communication Nº 282/1988, U.N. Doc. CCPR/C/47/D/282/1988,
Campbell v. Jamaica, Communication Nº 248/1987, U.N. Doc. Nº CCPR/C/44/D/248/1987,
and Kelly v. Jamaica, Communication Nº 253/1987, U.N. Doc. Nº
Article 14 of the Constitution of the Republic of Trinidad and Tobago,
“if any person alleges that any provisions of this chapter has been,
is being, or is likely to be contravened in relation to him, then
without prejudice to any other action with respect to the same matter
which is lawfully available that person may apply to the High Court
for redress by way of an originating motion.”
Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/I.4
rev.8 (22 May 2001), p. 48.
Court H.R., Baruch Ivcher Bronstein v. Peru, Jurisdiction, Judgment
(24 September 1999), para. 37 (noting that the obligations of States
Parties to the American Convention on Human Rights to guarantee
compliance with its provisions applies both to the substantive and
procedural norms under the treaty).
 According to the jurisprudence of the Inter-American Court and Commission and that of other international human rights tribunals, human rights instruments may properly be applied in respect of acts that arose prior to the ratification of those instruments but which are continuing in nature and whose effects persist after the instruments’ entry into force See e.g. I/A Court H.R., Blake Case, Preliminary Objections, Judgment of July 2, 1996, Series C No. 27, paras. 33-34 and 46; IACHR, João Canuto de Oliveira v. Brazil, Report Nº 24/98, Annual Report of the IACHR 1997, paras. 13-18. See similarly Eur. Court H.R., Papamichalopoulos et al. v. Greece, June 24, 1993, Series A Nº 260-B, pp. 69-70, 46.
Article 20 of
the Statute of the IACHR provides that, in respect of those OAS member
states that are not parties to the American Convention on Human
Rights, the Commission may examine communications submitted to it and
any other available information, to address the government of such
states for information deemed pertinent by the Commission, and to make
recommendations to such states, when it finds this appropriate, in
order to bring about more effective observance of fundamental human
rights. See also I/A Court
H.R., Advisory Opinion OC-10/89 Interpretation of the American
Declaration of the Rights and Duties of Man Within the Framework of
Article 64 of the American Convention on Human Rights, July 14, 1989,
Nº 10 (1989), paras. 35-45;
I/A Comm. H.R., James Terry Roach and Jay Pinkerton v. United States,
Case 9647, Res. 3/87, 22 September 1987, Annual Report 1986-87, paras.
See I/A Court H.R., Velásquez Rodriguez Case, Judgment of July 29,
1988, Ser. S
No. 4 (1988), para. 163.
I/A Court H.R., Loayza
Tamayo Case, Preliminary Objections, Judgment of January 31, 1996,
Series C No. 25, para. 40.